This month's issue of The New Yorker includes this article by Jeffrey Toobin, Google's Moon Shoot, a fascinating narrative on Google's efforts to create a universal, electronic and fully searchable library of every book ever published. The article describes the details of creating this enormous database, such as (1) the creation of customized and proprietary scanning equipment that, surprisingly, is operated by humans rather than automated, (2) the development of search engines that can be used to locate passages and other text and (3) the potential integration of advertising into the library to generate revenue from the project.

Of interest to lawyers, however, Toobin also analyzes some of the copyright issues raised by the book-scanning project, a matter on which Google has taken a somewhat novel approach:

Google asserts that its use of the copyrighted books is “transformative,” that its database turns a book into essentially a new product. “A key part of the line between what’s fair use and what’s not is transformation,” Drummond said. “Yes, we’re making a copy when we digitize. But surely the ability to find something because a term appears in a book is not the same thing as reading the book. That’s why Google Books is a different product from the book itself.” In other words, Google says that being able to search books on its site—which it describes as the equivalent of a giant library card catalogue—is not the same as making the books themselves available. But the publishers cite another factor in fair-use analysis: the amount of the copyrighted work that is used in the creation of the new one. Google is copying entire books, which doesn’t sound “fair” to the plaintiff publishers and authors. “Traditional copyright analysis says that a transformation leads to the creation of a new and independent work, like a parody or a work of criticism,” Jane Ginsburg, a professor at Columbia Law School, said. “Copying the entire work, which is what Google is doing, does not preclude a finding of fair use, but it does fall outside the traditional paradigm.”

Currently, several lawsuits are pending regarding the copyright issue, though experts expect some kind of negotiated resolution. From Toobin's article:

The key legal question is whether the courts will allow Google to continue to scan copyrighted material without permission. But the schedule of the lawsuits may turn out to be as significant as the merits of the cases, which are before Judge John E. Sprizzo. In keeping with the stately pace of federal litigation, the depositions of witnesses are to begin sometime this year, and the parties will be allowed to file motions for summary judgment—in Google’s case, to dismiss the suits—in early 2008. Then there could be a trial. If the cases are appealed, they could linger well into the next decade.

However, most people involved in the dispute believe that a settlement is likely. “The suits that have been filed are a business negotiation that happens to be going on in the courts,” Marissa Mayer told me. “We think of it as a business negotiation that has a large legal-system component to it.” According to Pat Schroeder, the former congresswoman, who is the president of the Association of American Publishers, “This is basically a business deal. Let’s find a way to work this out. It can be done. Google can license these rights, go to the rights holder of these books, and make a deal.”

As Toobin writes, the law may have limits in resolving these issues; it simply moves too slowly for Google's rapid pace. In Toobin's view, ultimately, "the law of the jungle", or predominance of the major players rather than the courts, will settle these issues. And whether the result that ensues represents what's best for the public or what's best for Google (or if those two interests align) remains to be seen. (Full disclosure -- my husband is now employed by Google, albeit on an entirely different project).

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Google's Quest for a Universal Library and the Law

This month's issue of The New Yorker includes this article by Jeffrey Toobin, Google's Moon Shoot, a fascinating narrative on Google's efforts to create a universal, electronic and fully searchable library of every book ever published. The article describes the details of creating this enormous database, such as (1) the creation of customized and proprietary scanning equipment that, surprisingly, is operated by humans rather than automated, (2) the development of search engines that can be used to locate passages and other text and (3) the potential integration of advertising into the library to generate revenue from the project.

Of interest to lawyers, however, Toobin also analyzes some of the copyright issues raised by the book-scanning project, a matter on which Google has taken a somewhat novel approach:

Google asserts that its use of the copyrighted books is “transformative,” that its database turns a book into essentially a new product. “A key part of the line between what’s fair use and what’s not is transformation,” Drummond said. “Yes, we’re making a copy when we digitize. But surely the ability to find something because a term appears in a book is not the same thing as reading the book. That’s why Google Books is a different product from the book itself.” In other words, Google says that being able to search books on its site—which it describes as the equivalent of a giant library card catalogue—is not the same as making the books themselves available. But the publishers cite another factor in fair-use analysis: the amount of the copyrighted work that is used in the creation of the new one. Google is copying entire books, which doesn’t sound “fair” to the plaintiff publishers and authors. “Traditional copyright analysis says that a transformation leads to the creation of a new and independent work, like a parody or a work of criticism,” Jane Ginsburg, a professor at Columbia Law School, said. “Copying the entire work, which is what Google is doing, does not preclude a finding of fair use, but it does fall outside the traditional paradigm.”

Currently, several lawsuits are pending regarding the copyright issue, though experts expect some kind of negotiated resolution. From Toobin's article:

The key legal question is whether the courts will allow Google to continue to scan copyrighted material without permission. But the schedule of the lawsuits may turn out to be as significant as the merits of the cases, which are before Judge John E. Sprizzo. In keeping with the stately pace of federal litigation, the depositions of witnesses are to begin sometime this year, and the parties will be allowed to file motions for summary judgment—in Google’s case, to dismiss the suits—in early 2008. Then there could be a trial. If the cases are appealed, they could linger well into the next decade.

However, most people involved in the dispute believe that a settlement is likely. “The suits that have been filed are a business negotiation that happens to be going on in the courts,” Marissa Mayer told me. “We think of it as a business negotiation that has a large legal-system component to it.” According to Pat Schroeder, the former congresswoman, who is the president of the Association of American Publishers, “This is basically a business deal. Let’s find a way to work this out. It can be done. Google can license these rights, go to the rights holder of these books, and make a deal.”

As Toobin writes, the law may have limits in resolving these issues; it simply moves too slowly for Google's rapid pace. In Toobin's view, ultimately, "the law of the jungle", or predominance of the major players rather than the courts, will settle these issues. And whether the result that ensues represents what's best for the public or what's best for Google (or if those two interests align) remains to be seen. (Full disclosure -- my husband is now employed by Google, albeit on an entirely different project).